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The Manufactured Criminal

At Crime and Consequences, Bill Otis tries to sneak in through the back door of the Webster, New York, murder of two firefighters on Christmas Eve by raising the two women who purchased guns for the shooter, a convicted felon who would be ineligible to buy guns for himself. It’s a sneaky move, considering that he never mentions the impetus for his post until a link in the last line of his post.

Rather, the post begins:

Liberals and, especially, libertarians, have unending heartburn about imposing criminal punishment for non-violent, regulatory offenses. One particular provision that gives them fits is the federal false statements statute, 18 USC 1001, which makes it a felony for a person to make a false or deceptive statement to any department or agency of the United States in any matter within the agency’s jurisdiction.

It’s a disingenuous start to an argument, given that the substantial issues raised are hardly of interest only to people of certain political persuasions. He could have substituted “intelligent, and, especially, well educated people” for political ideology, but that would not have served his ends. Better to use pejorative terms and play “hide the salami.”

It is true that Section 1001 is potentially subject to abuse by prosecutors. On the other hand, it would be hard to find a statute that is not “potentially” subject to abuse. It seems to me to be very much an overdrawn conclusion that potential abuse outweighs the damage to legitimate governmental functions that can be caused by lying.

This provides valuable insight into both the illogic of overcriminalization, as disturbing to conservatives as anyone else, and the blind faith reposed in law enforcement. While it’s true that unethical or deceitful prosecutors have the potential to abuse every aspect of the system, say by withholding Brady or proffering false testimony, it’s of a fundamentally different nature.

A §1001 violation criminalizes statements to federal authorities that they deem untrue. Because agents and prosecutors have a magical ability to distinguish “real” truth from fake “truth.” And they do: “real” truth is their truth, what they believe. What anyone else believes but they do not is a crime.

Worse still is the “exculpatory no” problem.

The most prominent example of judicial willingness effectively to circumvent the false statements statute lay in many courts’ acceptance of the “exculpatory no” doctrine, in which an interviewee’s simple, though false, denial of wrongdoing in response to an investigator’s question was held to be outside the statute. (The “exculpatory no” doctrine was brought to an end in 1998 in Brogan v. United States).

In other words, if the government decides you’re guilty and you denied guilty, you’re not only guilty for the underlying offense they believe you committed, but for a second crime of denying guilt. As Justice Scalia wrote, there is no exception to §1001 for any false statement, including the denial of guilt.

This, of course, means that if a federal agent asks if you’re guilty, the only safe answer is to invoke the right to remain silent. While this is always a good idea, it’s rarely a person’s first reaction, and will invariably serve to confirm the agent’s suspicion. After all, innocent people deny guilty. Only guilty people avail themselves of the Constitution in a fed’s mind.

But then, what of the critical function served by the statute, so compelling that it overcomes the potential for abuse?

I also think libertarians focus on the perils of excessive government to the unhealthy exclusion of understanding the moral rot, and the damage, created by our present culture of deceit.

Assuming you begin with the premise that we are suffering from moral rot, based upon our culture of deceit, which is destroying the very fabric of our society that extreme laws are needed to return us to a state of grace, perhaps you will believe the risk worth taking. After all, if we are a society so grounded in deceit that no one except federal agents and prosecutors are trustworthy, criminalizing statements that don’t conform to what prosecutors want to hear makes some tiny amount of sense.

To prove his case, Otis finally raises the specter of the two Webster women who lied when purchasing weapons for the felon next door, the mechanism by which he seeks to show that it’s the lie, not the act that gave rise to harm, that must be eradicated.

While Otis seeks to couch his argument in political terms, invoking the dreaded liberal/libertarian cabal responsible for the moral rot in society, it’s really an argument of religion. He believes that federal agents and prosecutors are the representatives of good and decency in society, and the rest of us are reduced to the persuptively evil. He believes that a law that enables the forces of truth and justice to overcome the forces of moral rot to be worthwhile to combat the greater peril of our culture of deceit.

By his theory, there is no criminal law that doesn’t serve to benefit society, since all laws empower the forces of good against the forces of evil, and the forces of good can invariably be trusted not to abuse their awesome power. And to prove it, he grasps the horror of the Webster murders.

Just as we rail against new laws being crafted in the name of every tragedy, to remedy every harm that befalls someone in the quest to create a perfect world, Otis’ use of this tragedy to rationalize §1001 is similarly misguided and false. His attempt to use one outlier tragedy to justify a bad law with grave likelihood of abuse is the sort of disingenus sermons heard from itinerant preachers making the lame walk and the blind see. And it’s no more valid or true.

As a coda to Otis’ psalm, he makes no mention of federal agents lying in the Fast and Furious scandal. Perhaps in his religion, that’s when he turns the other cheek.

What is the legal theory under which it is a crime for you to lie to the government but permissible public policy for the government to lie to you? It’s hard to believe that the founders ever contemplated this – I suspect they thought it should always be the other way around.

After all, the master may lie to the servant but the servant should never lie to the master. Who is the master now?

It’s been an American sentiment for a long time that whenever anything wrong happens, the solution is to pass a law. And that the law (whatever it might happen to address) will magically solve the problem. cf the creation of the Comics Code Authority, which was to end the urban blight of juvenile deliquency.

Of course, laws that ban what YOU want to do are wrong-headed and unnecessary.

So you don’t believe in any limits on what Congress may do? Article I, Sections 8 and 9 are meaningless to you?

That viewpoint is exactly what’s wrong with today’s government, and is the reason for the overcriminalization that has CAUSED the “culture of deceit” those Feds complain about. They’ve chosen to make themselves our enemies, so they have no right to object when we no longer trust them or confide in them.

FWIW, the CCA was a private association. Below is a snip from the Comic Book Legal Defense Fund: “Designed to resemble a stamp, the seal bore the words “Approved by the Comics Code Authority,” which was the regulatory arm of the Comics Magazine Association of America. The trade association’s Comics Code Authority and its Seal of Approval were the publishers’ answer to their critics.”

He’s in favor of punishing nonviolent regulatory offenses. Fine. So why not use one as an example? Last time I checked, §1001 was a statute, passed by Congress decades ago and revisited several times since.

And I’ve never heard anyone with half a brain — liberal or otherwise — claim that nonviolent crimes should not be punished. They’re still crimes, after all. People may argue that they should be punished less severely, but that’s different.

The problem is with the “regulatory” part of it. With those crimes that are defined, not by elected representatives, but by unelected regulatory agencies, by bureaucrats representing not the will of society but their own agenda.

From what I’ve seen, liberals are not the ones complaining about regulatory criminalization. They tend to encourage it, if anything. Conservatives (and libertarians) are the ones who are up in arms about it.

But his point is that nonviolent regulatory offenses *should* be punished. Ignoring that he ascribes the opposing view to the wrong side of the aisle, uses an inapposite statute as his example, and then uses it to make an equally inapposite appeal to emotion/fear… he’s still wrong. They shouldn’t be punished, because they’re regulatory. The offenses aren’t violations of societal norms, but of often arbitrary bureaucratic rules.

Unless Otis didn’t really mean that. Maybe by “regulatory” offenses he really meant statutory offenses that have to do with words or documents or the like. In which case his point is merely that nonviolent crimes should be punished. In which case he’s taking sides in an argument that doesn’t even exist.

I doubt he put nearly that much thought into the post, but rather saw an appeal to fear/emotion as an opportunity to rationalize a nonviolent regulatory backdoor crime that, as you correctly note, whose parameters are defined by the agencies benefitting from it and apply it at their convenience.

And thanks for the comment. I thought I had somehow completely blown this post given the other comments here. It’s good to know that someone understood the point.

So, if I tell an investigator that I am guilty of a crime I did not commit can the prosecutor prove my innocence to the underlying offence? Then claim innocence under 1001 because the Feds are always right?

Scott H. Greenfield

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SHG